LSO Barrister Evidence Law 2 — Questions and Answers
Question 1: What is the 'Mohan test' for the admissibility of expert evidence in Canadian courts?
- Any person with a university degree can testify as an expert
- The expert evidence must meet four criteria: relevance, necessity (beyond the knowledge of the trier of fact), absence of an exclusionary rule, and proper qualification of the expert — plus the cost-benefit analysis from White Burgess regarding impartiality and bias (Correct answer)
- The Mohan test only applies to medical experts
- Expert evidence is admissible without any specific test
Correct answer: The expert evidence must meet four criteria: relevance, necessity (beyond the knowledge of the trier of fact), absence of an exclusionary rule, and proper qualification of the expert — plus the cost-benefit analysis from White Burgess regarding impartiality and bias
R v Mohan (1994) established four criteria: (1) relevance to an issue in the case; (2) necessity — the evidence must be necessary to assist the trier of fact because it is beyond ordinary knowledge and experience; (3) no exclusionary rule bars its admission; (4) the witness is properly qualified by education, training, or experience. White Burgess (2015) added a threshold requirement of impartiality — the expert must be willing and able to fulfill their duty to the court to provide fair, objective, and non-partisan evidence.
Question 2: What is the 'KGB statement' and when can prior inconsistent statements be admitted for their truth in Canadian criminal law?
- Prior inconsistent statements can never be used for their truth
- Following R v B(KGB), a prior inconsistent statement can be admitted for its truth if it was made under oath or solemn affirmation, was video or audio recorded, and the opposing party has an opportunity to cross-examine the witness at trial (Correct answer)
- Prior inconsistent statements are automatically admissible in all cases
- Only written statements qualify under this rule
Correct answer: Following R v B(KGB), a prior inconsistent statement can be admitted for its truth if it was made under oath or solemn affirmation, was video or audio recorded, and the opposing party has an opportunity to cross-examine the witness at trial
R v B(KGB) (1993) created an exception allowing prior inconsistent statements to be admitted for their truth (not just to impeach credibility) when three conditions of reliability are met: (1) the statement was made under oath, solemn affirmation, or solemn declaration; (2) the statement was videotaped in its entirety; (3) the opposing party has a full opportunity to cross-examine the witness at trial. These conditions provide adequate substitutes for the safeguards of in-court testimony.
Question 3: What is the 'confessions rule' (Ibrahim rule) in Canadian criminal law?
- All confessions are automatically admissible
- A confession to a person in authority is only admissible if the Crown proves beyond a reasonable doubt that it was voluntary — not induced by threats, promises, oppression, or an operating mind deficiency (Correct answer)
- Confessions are only inadmissible if the accused was physically tortured
- The confessions rule has been replaced by the Charter
Correct answer: A confession to a person in authority is only admissible if the Crown proves beyond a reasonable doubt that it was voluntary — not induced by threats, promises, oppression, or an operating mind deficiency
The common law confessions rule (Ibrahim v The King, 1914) requires the Crown to prove beyond a reasonable doubt that a statement to a person in authority was voluntary. Voluntariness examines: (1) threats or promises (inducements); (2) oppression (prolonged questioning, deprivation); (3) whether the accused had an operating mind (understanding of the process); (4) police trickery that would shock the community. This rule operates alongside, not replaced by, Charter protections (s.7, s.10(b)).
Question 4: What are the rules regarding 'character evidence' of the accused in Canadian criminal proceedings?
- The Crown can always lead evidence of the accused's bad character
- The accused's character evidence is generally inadmissible if introduced by the Crown, but the accused may 'put their character in issue' by leading good character evidence — which then opens the door for the Crown to respond with bad character evidence (Correct answer)
- Character evidence is never relevant in criminal cases
- Only the accused's criminal record can be introduced
Correct answer: The accused's character evidence is generally inadmissible if introduced by the Crown, but the accused may 'put their character in issue' by leading good character evidence — which then opens the door for the Crown to respond with bad character evidence
The general rule prohibits the Crown from leading evidence of the accused's bad character or disposition to prove guilt (it is too prejudicial and of limited probative value). However, the accused may choose to put their character in issue by leading evidence of good character. This 'opens the door' for the Crown to introduce evidence of bad character in rebuttal. Exceptions include similar fact evidence (R v Handy) and cross-examination on criminal record if the accused testifies.
Question 5: What is 'privilege against self-incrimination' in Canadian law and what protections does it provide?
- Only the accused has any protection against self-incrimination
- It encompasses the right to silence (s.7 Charter), the protection against compelled testimony at one's own trial (s.11(c) Charter), and use immunity for testimony compelled in other proceedings (s.13 Charter) — preventing compelled testimony from being used against the witness in subsequent proceedings (Correct answer)
- It means a person can never be asked questions by the police
- It only protects against physical evidence, not testimony
Correct answer: It encompasses the right to silence (s.7 Charter), the protection against compelled testimony at one's own trial (s.11(c) Charter), and use immunity for testimony compelled in other proceedings (s.13 Charter) — preventing compelled testimony from being used against the witness in subsequent proceedings
The protection against self-incrimination has multiple dimensions: (1) s.11(c) — an accused cannot be compelled to testify at their own trial; (2) s.7 right to silence — the right not to be conscripted against oneself; (3) s.13 use immunity — testimony compelled in one proceeding cannot be used to incriminate the witness in subsequent proceedings (except perjury/contradictory evidence); (4) the common law right to silence pre-trial. Together, these protect the principle that the state must prove its case without conscripting the accused.
Question 6: What are the rules regarding the admissibility of electronic evidence in Ontario courts?
- Electronic evidence is never admissible
- Electronic records are admissible under the Canada Evidence Act and Ontario Electronic Commerce Act if their authenticity and integrity can be established, with presumptions of integrity for records stored in the usual and ordinary course of business (Correct answer)
- Only printed copies of electronic records are admissible
- Electronic evidence requires expert testimony in every case
Correct answer: Electronic records are admissible under the Canada Evidence Act and Ontario Electronic Commerce Act if their authenticity and integrity can be established, with presumptions of integrity for records stored in the usual and ordinary course of business
The Canada Evidence Act (s.31.1-31.8) and Ontario's Electronic Commerce Act provide frameworks for electronic evidence. Key principles include: (1) electronic records are not inadmissible solely because they are electronic; (2) authentication requires evidence of their source and integrity; (3) records maintained in the usual course of business enjoy a presumption of integrity; (4) the 'best evidence' of an electronic record includes a printout or display. Metadata, social media posts, emails, and digital images are all potentially admissible if properly authenticated.
LSO Barrister Evidence Law 2
What is the 'Mohan test' for the admissibility of expert evidence in Canadian courts?